Citation Nr: 1019768
Decision Date: 05/27/10 Archive Date: 06/09/10
DOCKET NO. 07-16 879 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Nashville,
Tennessee
THE ISSUE
Whether the appellant's general discharge under conditions
other than honorable is a bar to VA benefits.
REPRESENTATION
Appellant represented by: Darla J. Lilley, Attorney
ATTORNEY FOR THE BOARD
J. Connolly, Counsel
INTRODUCTION
The appellant served on active duty from September 1979 to
August 1981.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a May 2006 administrative decision of the
Nashville, Tennessee, Regional Office (RO) of the Department
of Veterans Affairs (VA). In March 2009, the Board remanded
this case.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
Unfortunately, another remand is required in this case.
Although the Board sincerely regrets the additional delay, it
is necessary to ensure that there is a complete record upon
which to decide the appellant's claim so that he is afforded
every possible consideration.
In the prior remand, the Board requested that all service
psychiatric treatment and clinical records be obtained, to
include a copy of the appellant's mental status examination
report completed at the time of his separation from service.
As referenced in a May 2006 administrative decision, this
report apparently showed that he had an immature personality
with alcoholic tendencies, but without psychosis. This
action was not completed. In light of the foregoing, further
action is necessary in this case, in accordance with the
previous Board remand directives. See Stegall v. West, 11
Vet. App. 268 (1998) (as a matter of law, a remand by the
Board confers on the Veteran the right to compliance with the
remand orders).
In addition, the Board notes that in written statements, the
appellant contends that he was insane during his period of
active duty from September 1979 to August 1981.
Specifically, he maintains that he wrote bad checks and
failed to pay his debts due to symptoms associated with his
schizoaffective disorder/bipolar disorder. The appellant
maintains that he had psychotic symptoms, including auditory
hallucinations telling him to engage in reckless, fiscally
irresponsible behavior, and was insane when he committed the
illegal acts.
The appellant's DD Form 214 states that the narrative reason
for his separation from service was: "MISCONDUCT-FREQUENT
INVOLVEMENT OF A DISCREDITABLE NATURE." The appellant had
been court martialed for writing bad checks on numerous
occasions and for the failure to pay a debt to the Air Force
Exchange.
The service records reflect that he admitted to having a
problem with gambling prior to entering service and that he
stated that he financed some of his gambling issues with the
proceeds from the bad checks. He also referred to being
depressed. The service treatment records reflected several
visits by the appellant to the mental health clinic,
treatment in an alcohol program, and complaints related to
nerves on the separation examination.
VA regulations provide that an insane person is one (1) who,
while not mentally defective or constitutionally
psychopathic, except when a psychosis has been engrafted upon
such basic condition, exhibits, due to disease, a more or
less prolonged deviation from his normal method of behavior;
or (2) who interferes with the peace of society; or (3) who
has so departed (become antisocial) from the accepted
standards of the community to which by birth and education he
belongs as to lack the adaptability to make further
adjustment to the social customs of the community in which he
resides. 38 C.F.R. § 3.354(a) (2009).
When the question is whether an individual was insane at the
time of an offense leading to his court-martial or discharge,
the rating agency will base its decision on all the evidence
procurable relating to the period involved, and apply the
definition of paragraph (a). 38 C.F.R. § 3.354(b). Notably,
mental illness is not identical to "insanity." Beck v.
West, 13 Vet. App. 535, 539 (2000). In addition, the Court
has held that the insanity need only exist at the time of the
commission of the offense leading to the person's discharge,
and that there is no requirement of a causal connection
between the insanity and the misconduct. Struck v. Brown, 9
Vet. App. 145 (1996). There still must be competent
evidence, though, establishing the appellant was insane at
the time of the offenses in question leading to the other
than honorable discharge. Zang v. Brown, 8 Vet. App. 246,
254 (1995). In addition, the Court held that "a
determination of whether a person is insane is in effect a
determination of whether that person's actions were
intentional and thus the result of willful misconduct." Id.
at 254. The Court further indicated such a determination is
not warranted when the record does not reflect a claimant
suffered from insanity due to disease or that he did not know
or understand the nature or consequences of his acts, or that
what he was doing was wrong. Id. Significantly, the burden
is on the appellant to submit competent medical evidence that
he was insane at the time of his offenses. Stringham v.
Brown, 8 Vet. App. 445, 449 (1995).
In May 1997, the VA General Counsel discussed the intended
parameters of the types of behavior which were defined as
insanity under 38 C.F.R. § 3.354(a). It was indicated that
behavior involving a minor episode or episodes of disorderly
conduct or eccentricity does not fall within the definition
of insanity in that regulation. It was further indicated
that a determination of the extent to which an individual's
behavior must deviate from his normal method of behavior
could best be resolved by adjudicative personnel on a case-
by-case basis in light of the authorities defining the scope
of the term insanity. VAOPGCPREC 20-97 (May 22, 1997).
The opinion provided guidance with regard to the phrases
"interferes with the peace of society," "become antisocial,"
"accepted standards of the community," and "social customs of
the community." In particular, the term "become antisocial"
in 38 C.F.R. § 3.354(a) refers to the development of behavior
which is hostile or harmful to others in a manner which
deviates sharply from the social norm and which is not
attributable to a personality disorder. In order to be
considered insane under the departure-from-accepted-standards
criteria of section 3.354(a), a person must both deviate from
the accepted standards of the community to which he or she
belongs by birth and education and be unable to adjust to the
social customs of the community in which he or she resides.
Id. The opinion also held that behavior which was generally
attributable to a substance-abuse disorder did not exemplify
the severe deviation from the social norm or the gross nature
of conduct which was generally considered to fall within the
scope of the term insanity and therefore did not constitute
insane behavior. Id.
Generally, the predicate for insane behavior within the
meaning of VA law and regulations is a persistent morbid
condition of the mind characterized by a derangement of one
or more of the mental faculties to the extent that the
individual is unable to understand the nature, full import
and consequences of his acts, such that he is a danger to
himself or others. In effect, he is rendered incapable of
managing himself or his affairs, a concept akin to the level
of incompetency generally supporting appointment of a
guardian. Id.
Because this case presents complex medical and unresolved
factual questions and since the Board is precluded from
reaching its own unsubstantiated medical conclusions, further
development is required and a VA medical opinion should be
obtained. See Jones v. Principi, 16 Vet. App. 219, 225
(2002), citing Smith v. Brown, 8 Vet. App. 546, 553 (1996)
(en banc); Colvin v. Derwinski, 1 Vet. App. 171 (1991).
Accordingly, the case is REMANDED for the following action:
1. All psychiatric service treatment
records, including clinical records,
should be obtained. A specific request
should be made for a copy of the mental
status examination report at the time of
the appellant's separation indicating he
had an immature personality with
alcoholic tendencies but without
psychosis.
2. After completing Action Paragraph #1,
obtain an opinion from a VA psychiatrist.
The examiner should review the claims
folder, including the service treatment
and personnel records. The examiner
should provide an opinion as to the
following question:
Taking into consideration VA's definition
of insanity, is it at least as likely as
not (a 50% or higher degree of
probability) that the appellant was
"insane" at the time that he committed
the offenses during service (i.e.,
writing bad checks on numerous occasions
and failure to pay a debt to the Air
Force Exchange).
Again, VA regulations provide that an
insane person is one (1) who, while not
mentally defective or constitutionally
psychopathic, except when a psychosis has
been engrafted upon such basic condition,
exhibits, due to disease, a more or less
prolonged deviation from his normal
method of behavior; or (2) who interferes
with the peace of society; or (3) who has
so departed (become antisocial) from the
accepted standards of the community to
which by birth and education he belongs
as to lack the adaptability to make
further adjustment to the social customs
of the community in which he resides. 38
C.F.R. § 3.354(a) (2009).
The examiner should provide a complete
rationale for all opinions expressed and
conclusions reached.
3. Then, review the medical opinion
obtained above to ensure that the remand
directives have been accomplished. If
all questions posed are not answered or
sufficiently answered, return the case to
the examiner for completion of the
inquiry.
4. Finally, readjudicate the claim on
appeal in light of all of the evidence of
record. If the issue remains denied, the
appellant should be provided with a
supplemental statement of the case as to
the issue on appeal, and afforded a
reasonable period of time within which to
respond thereto.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2009).
_________________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002 & Supp. 2009), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2009).